# RAVIKUMAR DHANSUKHLAL MAHETA & ANR v. HIGH COURT OF GUJARAT AND ORS

- **Citation:** [2023] 5 S.C.R. 416
- **Court:** Supreme Court of India
- **Decided:** 2023-05-12
- **Bench:** M. R. Shah, C. T. Ravikumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ravikumar-dhansukhlal-maheta-anr-v-high-court-of-gujarat-and-ors-37187
- **Pages:** 18

## Headnote

Judiciary: Higher judiciary - District judges - Appointment
- Promotion of Senior Civil Judges to the cadre of District Judge -
Rules 2005 prescribed 65% posts in the cadre of District Judge to
be filled by promotion amongst Senior Civil Judges on the basis of
principle of merit cum seniority and passing of a suitability test -
Issuance of select list by the High Court for promotion of Senior
Civil Judges to the cadre of District Judge (65% quota) - Petitioners
not recommended for promotion even though having higher marks
than the ones promoted - Writ petition by the petitioners challenging
the select list as being violative of Art. 14 and r. 5 of the 2005 Rules
- Issuance of Notice - However, despite being served with the copy
of the petition, the State Government vide notification dated
18.04.2023 notified the appointment of 68 candidates, subject to
the ultimate outcome of the writ petition - Held: High Court
considered the merit only for the purpose of achieving the benchmark
and thereafter switched to the seniority-cum-merit and thereby gave
a go-by to the principle of merit-cum-seniority - Method adopted
by the High Court contrary to the observations made by this Court
in All India Judges' Association's case and also contrary to the 2005
Rules and the Recruitment Notice - High Court adopted a wrong
method - Thus, the impugned Selection List issued by the High Court
and the subsequent Notification issued by the State Government
granting promotion to the cadre of District Judge illegal and
contrary to the relevant Rules and Regulations and even to the
decision of this Court in the case of All India Judges' Association
and Ors.'s case, thus, not sustainable - State Government could
have waited till the next date of hearing by this Court - At present
the respective promotees have not assumed their posting on the
promotional post, they have been sent for training, thus, the
further implementation and operation of the Select List issued by
the High Court and the subsequent Notification issued by the State
A
B
C
D
E
F
G
H
417
Government is stayed - Constitution of India - Arts. 14, 32 - Gujarat
State Judicial Services Rules, 2005.
All India Judges' Association and Ors. vs. Union of India
and Ors. (2002) 4 SCC 247 : [2002] 2 SCR 712 - relied
upon.
B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors.
(1998) 6 SCC 720 : [1998] 3 SCR 782; State of Kerala
and Anr. vs. N. M. Thomas and Ors. (1976) 2 SCC 310
: [1976] 1 SCR 906; Shriram Tomar and Anr. vs.
Praveen Kumar Jaggi and Ors. (2019) 5 SCC 736 :
[2019] 6 SCR 590; Manoj Parihar and Others vs. State
of Jammu & Kashmir and Ors. SLP (C) No. 11039 of
2022 decided on June 27, 2022; C.P. Kalra vs Air India
(1994) Supp. 1 SCC 454; Hemani Malhotra Vs. High
Court of Delhi (2008) 7 SCC 11 : [2008] 5 SCR 1066;
V.K. Srivastava and Ors. vs. Government of Uttar
Pradesh and Anr. (2008) 9 SCC 77 : [2008] 13 SCR
24; Rajendra Kumar Srivastava and Ors. vs. Samyut
Kshetriya Gramin Bank and Ors. (2010) 1 SCC 335 :
[2009] 15 SCR 936 - referred to.
Case Law Reference
[1998] 3 SCR 782
referred to
Para 4.2
[1976] 1 SCR 906
referred to
Para 4.2
[2019] 6 SCR 590
referred to
Para 4.2
(1994) Supp. 1 SCC 454
referred to
Para 4.4
[2008] 5 SCR 1066
referred to
Para 4.9
[2008] 13 SCR 24
referred to
Para 7 (ii)
[2009] 15 SCR 936
referred to
Para 8.8
[2002] 2 SCR 712
relied on
Para 8.2, 8.3, 8.4,
8.5, 9, 10
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 432
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS.
A
B
C
D
E
F
G
H
418
SUPREME COURT REPORTS
[2023] 5 S.C.R.
Basant R., Sr. Adv., Purvish Jitendra Malkan, Ms. Dharita Purvish
Malkan, Alok Kumar, Deepak Mani Tripathi, Nayan Gupta, Ms. Deepa
Gorasia, Ajit Rao, Saudagar Singh, Ms. Rumii Chanda, Advs. for the
Petitioners.
Dushyant Dave, S.V. Raju, Ms. Meenakshi Arora, Sr. Advs.,
Sandeep Kumar Jha, Aakshat Malpani, Nikhil Goel, Naveen Goel, Aditya
Koshy Roy, Ms. Deepanwita Priyanka, Ms. M

## Text

_Characters 0–39,680 of 40,245. This is a partial read: ask again with offset=39680 for what follows._

A
B
C
D
E
F
G
H
416
SUPREME COURT REPORTS
[2023] 5 S.C.R.
[2023] 5 S.C.R. 416
416
RAVIKUMAR DHANSUKHLAL MAHETA & ANR.
v.
HIGH COURT OF GUJARAT AND ORS.
(Writ Petition (C) No. 432 of 2023)
MAY 12, 2023
[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]
Judiciary: Higher judiciary - District judges - Appointment
- Promotion of Senior Civil Judges to the cadre of District Judge -
Rules 2005 prescribed 65% posts in the cadre of District Judge to
be filled by promotion amongst Senior Civil Judges on the basis of
principle of merit cum seniority and passing of a suitability test -
Issuance of select list by the High Court for promotion of Senior
Civil Judges to the cadre of District Judge (65% quota) - Petitioners
not recommended for promotion even though having higher marks
than the ones promoted - Writ petition by the petitioners challenging
the select list as being violative of Art. 14 and r. 5 of the 2005 Rules
- Issuance of Notice - However, despite being served with the copy
of the petition, the State Government vide notification dated
18.04.2023 notified the appointment of 68 candidates, subject to
the ultimate outcome of the writ petition - Held: High Court
considered the merit only for the purpose of achieving the benchmark
and thereafter switched to the seniority-cum-merit and thereby gave
a go-by to the principle of merit-cum-seniority - Method adopted
by the High Court contrary to the observations made by this Court
in All India Judges' Association's case and also contrary to the 2005
Rules and the Recruitment Notice - High Court adopted a wrong
method - Thus, the impugned Selection List issued by the High Court
and the subsequent Notification issued by the State Government
granting promotion to the cadre of District Judge illegal and
contrary to the relevant Rules and Regulations and even to the
decision of this Court in the case of All India Judges' Association
and Ors.'s case, thus, not sustainable - State Government could
have waited till the next date of hearing by this Court - At present
the respective promotees have not assumed their posting on the
promotional post, they have been sent for training, thus, the
further implementation and operation of the Select List issued by
the High Court and the subsequent Notification issued by the State
A
B
C
D
E
F
G
H
417
Government is stayed - Constitution of India - Arts. 14, 32 - Gujarat
State Judicial Services Rules, 2005.
All India Judges' Association and Ors. vs. Union of India
and Ors. (2002) 4 SCC 247 : [2002] 2 SCR 712 - relied
upon.
B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors.
(1998) 6 SCC 720 : [1998] 3 SCR 782; State of Kerala
and Anr. vs. N. M. Thomas and Ors. (1976) 2 SCC 310
: [1976] 1 SCR 906; Shriram Tomar and Anr. vs.
Praveen Kumar Jaggi and Ors. (2019) 5 SCC 736 :
[2019] 6 SCR 590; Manoj Parihar and Others vs. State
of Jammu & Kashmir and Ors. SLP (C) No. 11039 of
2022 decided on June 27, 2022; C.P. Kalra vs Air India
(1994) Supp. 1 SCC 454; Hemani Malhotra Vs. High
Court of Delhi (2008) 7 SCC 11 : [2008] 5 SCR 1066;
V.K. Srivastava and Ors. vs. Government of Uttar
Pradesh and Anr. (2008) 9 SCC 77 : [2008] 13 SCR
24; Rajendra Kumar Srivastava and Ors. vs. Samyut
Kshetriya Gramin Bank and Ors. (2010) 1 SCC 335 :
[2009] 15 SCR 936 - referred to.
Case Law Reference
[1998] 3 SCR 782
referred to
Para 4.2
[1976] 1 SCR 906
referred to
Para 4.2
[2019] 6 SCR 590
referred to
Para 4.2
(1994) Supp. 1 SCC 454
referred to
Para 4.4
[2008] 5 SCR 1066
referred to
Para 4.9
[2008] 13 SCR 24
referred to
Para 7 (ii)
[2009] 15 SCR 936
referred to
Para 8.8
[2002] 2 SCR 712
relied on
Para 8.2, 8.3, 8.4,
8.5, 9, 10
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 432
of 2023.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS.
A
B
C
D
E
F
G
H
418
SUPREME COURT REPORTS
[2023] 5 S.C.R.
Basant R., Sr. Adv., Purvish Jitendra Malkan, Ms. Dharita Purvish
Malkan, Alok Kumar, Deepak Mani Tripathi, Nayan Gupta, Ms. Deepa
Gorasia, Ajit Rao, Saudagar Singh, Ms. Rumii Chanda, Advs. for the
Petitioners.
Dushyant Dave, S.V. Raju, Ms. Meenakshi Arora, Sr. Advs.,
Sandeep Kumar Jha, Aakshat Malpani, Nikhil Goel, Naveen Goel, Aditya
Koshy Roy, Ms. Deepanwita Priyanka, Ms. Mayuri Raghuvanshi, Vyom
Raghuvanshi, Tushar Arora, Ms. VP Singh, Ms. Akanksha Rathore,
Aditya Choksi, Arpit Gupta, Advs. for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. By way of this writ petition under Article 32 of the Constitution
of India, the writ petitioners have prayed for an appropriate writ, direction
or order to declare the Select List dated 10.03.2023 issued by the High
Court of Gujarat at Ahmedabad for the promotion of Senior Civil Judges
to the Cadre of District Judge (65% quota) as being violative of Article
14 of the Constitution of India as well as Rule 5 of the Gujarat State
Judicial Service Rules, 2005 (hereinafter referred to as "Rules, 2005")
as well as the Recruitment Notice - District Judge (65%) dated
12.04.2022.
2. The facts leading to the present writ petition in nutshell are as
under:-
2.1 That this Court in the case of All India Judges' Association
and Ors. Vs. Union of India and Ors., (2002) 4 SCC 247, had
directed that the recruitment to the Higher Judicial Services, i.e., the
cadre of District Judges will be on the basis of principle of "merit-cumseniority" and passing a suitability test. This Court also further directed
that the appropriate Rules shall be framed as above by the respective
High Courts.
2.2 In pursuance to the above directions, the High Court of Gujarat
has framed the Gujarat State Judicial Service Rules, 2005, in which, 50
percent of the promotion from amongst the Senior Civil Judges (Senior
Division) has been enhanced to 65 percent by way of amendment in the
Rules, 2005 on 23.06.2011. Rule 5(1)(i) of the Rules, 2005 requires that
65 percent of the posts in the cadre of District Judges shall be filled in by
way of promotion from amongst the Senior Civil Judges on the basis of
"principle of merit-cum-seniority and passing a suitability test".
A
B
C
D
E
F
G
H
419
2.3 The High Court of Gujarat at Ahmedabad issued an
advertisement by way of Recruitment Notice - District Judge (65%)
dated 12.04.2022 for the promotion to the cadre of District Judges from
amongst the Senior Civil Judges on the basis of the principle of meritcum-seniority and passing a suitability test to fill up 65 percent of the
vacancies. The said Notification was issued alongwith list of 205 judicial
officers in the cadre of Senior Civil Judges falling under the zone of
consideration.
2.4 At this stage, it is required to be noted that in the Recruitment
Notice itself, it was specifically mentioned that "promotion to the cadre
of District Judge (65%) from amongst the Senior Civil Judges will be on
the basis of principle of merit-cum-seniority and on passing a suitability
test. In the Recruitment notice also, there was a reference to the suitability
test, which comprised of four components for assessing the suitability of
a judicial officer for promotion, which reads as under:-
2.5 Written test was conducted by the High Court on 16.10.2022.
The High Court declared a list on 17.11.2022 of 175 judicial officers,
who appeared in the written test and qualified the written test. The
petitioners were also declared qualified in the written test.
2.6 The High Court on 18.11.2022 called upon the month-wise
list of judgments disposed of, civil and criminal cases, of the candidates,
who have been declared qualified vide list dated 17.11.2022. The High
Court declared on 10.03.2023, the Select List of Senior Civil Judges.
The marks of the selected candidates were ranging between 148.50 to
100.50 marks. The petitioner No. 1 secured 135.50 out of 200 marks
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
420
SUPREME COURT REPORTS
[2023] 5 S.C.R.
and the petitioner No. 2 secured 148.50 marks out of 200 and as though
having higher marks, they were not appointed and/or their names were
not recommended for promotion to the cadre of District Judge, the
petitioners filed the present writ petition on 27.03.2023.
2.7 This Court issued the notice in the present writ petition on
13.04.2023 and passed a detailed speaking order, which reads as under:-
"It is the case on behalf of the petitioner(s) that as per the
Recruitment Rules, the post of District Judge is to be filled in by
keeping 65% reservation on the basis of the principle of meritcum-seniority and passing a suitability test. It is submitted that
despite the above while making the appointments vide Notification
dated 10.03.2023, the merit-cum-seniority principle has been given
go-by and the appointments are made on the basis of the senioritycum-merit. It is submitted that so far as petitioner no.1 is concerned,
he has secured 135.5 marks out of 200 and petitioner no.2 has
secured even the highest marks, i.e., 148.5 out of 200 and despite
the above, the candidates who are having lower marks have been
appointed.
Issue notice returnable on 28.04.2023.
Dasti service, in addition, is permitted.
It will be open for the petitioners to serve copy of the petition
on the standing counsel for respondent nos. 1 and 2."
2.8 Despite having been served with the copy of the present writ
petition and though notice was made returnable on 28.04.2023 and pending
the present writ petition, the State Government hurriedly issued the
Notification dated 18.04.2023 notifying the appointment of 68 candidates,
who were selected by Select List dated 10.03.2023, however, mentioned
in the Notification that the appointments / promotions shall be subject to
the outcome of the present writ petition.
3. Shri R. Basant, learned Senior Advocate has appeared with
Shri Purvish Jitendra Malkan, learned counsel appearing on behalf of
the writ petitioners. Shri S.V. Raju, learned ASG has appeared on behalf
of the State and Ms. Deepanwita Priyanka, learned counsel has also
appeared on behalf of the State. Shri Dushyant Dave, Ms. Meenakshi
Arora, learned Senior Advocates/ counsel have appeared on behalf of
the respective promotees.
A
B
C
D
E
F
G
H
421
4. Shri R. Basant, learned Senior Advocate appearing on behalf
of the respective petitioners has vehemently submitted that the impugned
selection / promotion to the post of District Judge (65%) vide selection
list dated 10.03.2023 and the further promotion order dated 18.04.2023
issued by the Government of Gujarat is absolutely illegal and contrary to
Rule 5(1)(i) of the Rules, 2005 as amended in 2011 as well as the
Recruitment Notice - District Judge (65%) dated 12.04.2022.
4.1 It is submitted that as per the relevant Recruitment Rules and
the Recruitment Notice, 65 percent of the posts in the cadre of District
Judge shall have to be filled in by way of promotion from amongst the
Senior Civil Judges on the basis of principle of merit-cum-seniority and
passing a suitability test. It is submitted that despite the above, the High
Court as well as the State Government have given the promotion by
applying the principle of seniority-cum-merit and the principle of meritcum-seniority has been given a go-by. It is submitted that the petitioner
No. 1 has secured 135.5 marks out of 200 marks and the petitioner No.2
has secured even the highest marks, i.e., 148.5 out of 200 marks and
despite the above, the candidates who are having lower marks have
been promoted.
4.2 On the principle of "merit-cum-seniority" and "seniority-cummerit", the learned Senior Advocate appearing on behalf of the petitioners
has heavily relied upon the following decisions:-
(i)
B.V. Sivaiah and Ors. Vs. K. Addanki Babu and Ors.,
(1998) 6 SCC 720;
(ii)
State of Kerala and Anr. Vs. N. M. Thomas and Ors.,
(1976) 2 SCC 310;
(iii)
Shriram Tomar and Anr. Vs. Praveen Kumar Jaggi
and Ors., (2019) 5 SCC 736; and
(iv)
Decision of this Court in the case of Manoj Parihar and
Others Vs. State of Jammu & Kashmir and Ors., SLP
(C) No. 11039 of 2022 decided on June 27, 2022.
4.3 It is further submitted by Shri Basant, learned Senior Advocate
appearing on behalf of the respective petitioners that the method adopted
by the High Court in preparing the Select List for promotion to the post
of District Judge is absolutely illegal and just contrary to the Rules, 2005
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
422
SUPREME COURT REPORTS
[2023] 5 S.C.R.
further amended in the year 2011. It is submitted that as per the High
Court and so stated in the counter affidavit, explaining the procedure
adopted for the selection of 68 candidates vide selection list dated
10.03.2023, it is stated as under:-
"9. The suitability of candidate had for components which were
duly reflected in the Recruitment Notice. The "Merit" eligibility
required a Candidate to secure minimum 40% marks in each
component with 50% marks aggregate. Upon achieving this, the
final selection would be based on seniority. Accordingly, a select
list of 68 candidates was prepared."
4.4 It is submitted that by adopting the above method, the High
Court has adopted the principle of "seniority-cum-merit". It is submitted
that the High Court by following the standard method of seniority-cummerit is to subject all the eligible candidates in the feeder grade (possessing
the prescribed educational qualification and period of service) to a process
of assessment of a specified minimum necessary merit and then promote
the candidates who are found to possess the minimum necessary merit
strictly in the order of seniority. It is submitted that though the High
Court uses the nomenclature of above method as merit-cum-seniority,
but actually has followed the principle of seniority-cum-merit. In support
of his above submission, the learned Senior Advocate has heavily relied
upon the decision of this Court in the case of N.M. Thomas and Ors.
(supra) as well as in the case of C.P. Kalra Vs Air India (1994)
Supp. 1 SCC 454. It is submitted that in the case of C.P. Kalra (supra),
this Court has ruled that though the Rules in the said case mention meritcum-seniority, however, rules elaborately lay down method of senioritycum-merit.
4.5 It is further submitted by the learned Senior Advocate appearing
on behalf of the petitioners that as per the settled position of law, when
promotion is to be based on "merit-cum-seniority" only, the basic qualified
seniority has to be seen for eligible candidates and thereafter the selection
for promotion has to be done on the basis of merit only. It is submitted
that, however, the process adopted by the High Court and the State is in
complete departure of the same. It is submitted that in the present case,
the High Court has considered the seniority to be the least identified
criteria for promotion, which cannot be sustained, if the principle of "meritcum-seniority" as provided under the Rules, 2005 is to be followed.
A
B
C
D
E
F
G
H
423
4.6 It is submitted that in any case, in the present case, the
appointment in the cadre of District Judge is governed by the Rules,
2005 as amended in the year 2011, which specifically provides for
promotion to the post of District Judge on the basis of principle of meritcum-seniority and passing a suitability test.
4.7 It is submitted that the High Court of Jharkhand at Ranchi
in 2019 while making appointment to the Superior Judicial Services
has followed the principle of merit-cum-seniority, by the same method,
which the petitioners are praying before this Hon'ble Court to direct
High Court of Gujarat to follow. Reliance is placed on the decision of
the High Court of Jharkhand in the case of Writ Petition (S) No.
3771 of 2019 dated 29.06.2022. It is further submitted that the High
Court of Calcutta has also followed the principle of merit-cum-seniority,
by the same method, as petitioners are praying for. Merit-wise result
of normal promotion-2020 to the cadre of District Judge issued by
Calcutta High Court would go to show that the first 17 officers, who
are in the merit, are selected and recommended for appointment to the
post of District Judge.
4.8 It is submitted that from the Merit List produced by the High
Court in the Counter Affidavit, it will satisfy that the petitioners ought to
have been included in the first 68 candidates. It is submitted that if the
High Court would have followed the principle of "merit-cum-seniority",
in that case, the petitioners would have been promoted to the post of
District Judge being more meritorious and having more marks than the
promoted candidates.
4.9 It is further submitted that even otherwise once the criteria
for eligibility have been mentioned in the recruitment notice, namely,
"merit-cum-seniority" and "suitability test", thereafter, it was not open
for the High Court and the State to include the additional requirement /
qualification of seniority either during the process or after the selection
process. Reliance is placed on the decision of this Court in the case of
Hemani Malhotra Vs. High Court of Delhi, (2008) 7 SCC 11.
4.10 Making above submissions and relying upon the above
decisions, it is prayed to allow the present writ petition.
5. A counter affidavit is filed on behalf of the State. The learned
Advocate appearing on behalf of the High Court has submitted as under:-
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
424
SUPREME COURT REPORTS
[2023] 5 S.C.R.
(i)
That the present writ petition under Article 32 of the
Constitution of India may not be entertained and the
petitioners may be relegatedto first approach the High
Court.;
(ii)
That in the present case, the Select List was published on
10.03.2023 and the State Government was moved on the
very day to issue necessary appointment orders.;
(iii)
That in the present case, a Selection Committee was
constituted for the purpose of 2022 selection. A feeder cadre
of 205 Senior Civil Judges was created with eligibility of
those who have at-least two years of qualifying service.
The list was uploaded on 12.04.2022 and the petitioners
were enlisted in the said list.;
(iv)
That the suitability of a candidate had four components,
which were duly reflected in the Recruitment Notice. The
"Merit" eligibility required a candidate to secure minimum
of 40% marks in each component with 50% marks
aggregate. Upon achieving this, the final selection would
be based on seniority. Accordingly, a Select List of 68
candidates was prepared, which was in consonance with
the decision of this Court in the case of C.P. Kalra (supra).;
(v)
That the Select List was placed before the Full Court
meeting and upon approval, was published on the website
of the High Court on 10.03.2023.;
(vi)
That the methodology, which has been followed by the High
Court is being followed since the year 2011.;
(vii)
That the methodology pointed out by the writ petitioners
only points out to selection based on merit. It is submitted
that once the feeder cadre includes the candidates who
have just two years of experience and the only Marks
Criterion is to be seen, the same becomes a selection based
only on Merits giving a complete go-by to the principle of
seniority.;
(viii) That in the present case, for the selection, merit is given
preference in as much as senior candidates pave way for
meritorious candidates, if at the first instance, they fail to
A
B
C
D
E
F
G
H
425
qualify the suitability test and thereafter the remaining
candidates fail to secure minimum marks in each of the
components and fail to secure aggregate 50% marks out of
total 200 marks. It is submitted that, therefore, once merit
is determined, seniority takes over. It is submitted that,
therefore, the principle of "merit-cum-seniority" has been
followed.;
(ix)
That the petitioners were aware of this procedure and
participated in it without any demur. It is submitted that
therefore, the writ petitioners are estopped from making
the present challenge.;
(x)
That the same formula was applied when the present
petitioners were promoted from their respective posts to
the cadre of Senior Civil Judge. It is submitted that therefore,
the writ petitioners, thereafter, cannot make any grievance
with respect to the same methodology adopted while
considering the post of District Judge.;
(xi)
That the Andhra Pradesh High Court and the Orissa High
Court have also followed the same methodology of principle
of merit-cum-seniority.;
6. Now, so far as the submission on behalf of the respondents not
to entertain the present writ petition under Article 32 of the Constitution
of India is concerned, the said objection is overruled. Taking into
consideration the fact that the impugned decision of the High Court has
been approved by the Full Court of the High Court and taking into
consideration the earlier decision of this Court in the case of All India
Judges' Association and Ors. (supra) and even thereafter also one
another petition under Article 32 of the Constitution has been entertained,
the present writ petition under Article 32 of the Constitution is entertained.
7. Learned Senior Advocate appearing on behalf of the promotees,
while opposing the present writ petition has made the following
submissions:-
(i)
That the Rules, 2005 have been framed in compliance of
the directions issued by this Court in the case of All India
Judges' Association and Ors. (supra). It is submitted
that in paragraph 27, this Court has held that there should
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
426
SUPREME COURT REPORTS
[2023] 5 S.C.R.
be two methods for appointment by promotion, namely, (i)
promotion on the basis of principle of merit-cum-seniority
and (ii) by promotion strictly on the basis of merit. The
distinction between two methods of promotions is that while
in the second method, the merits obtained by the judicial
officers in the examination alone will determine their position
in the Select List whereas while promotion as per the first
method, seniority in the feeder cadres has to be maintained.;
(ii)
That in the case of V.K. Srivastava and Ors. Vs.
Government of Uttar Pradesh and Anr., (2008) 9 SCC
77, this Court has also further clarified that even if the
principle of merit-cum-seniority has to be applied, the
principle is that if the candidates are eligible for promotion
to the cadre of District Judges, the seniority in the feeder
category has to be maintained as regards 50 percent of the
promotions are concerned and in the case of 25 percent
promotions, the test must be rigorous and strictly on merit
and such candidate may supersede some of their colleagues
in the feeder category, i.e., Civil Judges (Senior Division).;
(iii)
That the very purpose for providing the channel of promotion
under 10% quota through limited competitive examination
is to provide an incentive to the officers amongst the
relatively junior officers to improve and to compete with
each other so as to excel and get quicker promotion.
However, this method of promotion is not to be applied while
filling up the vacancies under the 65% quota.;
(iv)
That the merit-cum-seniority does not mean that the length
of service has no relevance and a written examination that
only tests academic knowledge, which is sometimes, gained
without possessing overall qualities, practical experience
of practicing law.;
(v)
Learned counsel appearing on behalf of the promotees has
further submitted that the decisions relied on behalf of the
petitioners shall not be applicable for the recruitment of
District Judges. It is further submitted that even the Rules
in Jharkhand and West Bengal are distinct and different
from the Rules applicable so far as the Gujarat is concerned.
A
B
C
D
E
F
G
H
427
It is submitted that in proviso to Rule 5 in Jharkhand Rules,
it is stated that seniority shall prevail only when the merit is
concluded in all respects. However, no such provision is
stated in the Rules applicable.;
(vi)
Making above submissions, it is prayed to dismiss the present
writ petition.
8. At the outset, it is required to be noted that as per the relevant
Recruitment Rules, namely, The Gujarat State Judicial Service Rules,
2005 further amended in 2011, the promotion to the post of District Judge
is to be given on the basis of principle of merit-cum-seniority and passing
a suitability test. The relevant rules read as under: -
"........................(1) Recruitment to the cadre of District
Judge shall be as under:-
(i)
65 percent of posts shall be filled in by promotion from
amongst the Senior Civil Judge on the basis of principle of
merit-cum-seniority and passing a suitability test.
(ii)
10 percent of posts shall be filled in by promotion on the
basis of merit through competitive examination from
amongst Senior Civil Judges having not less than five years
qualifying service:
Provided that when candidates are not available for 10%
seats or are not able to qualify in the competitive
examination, then the vacant posts shall be filled in by regular
promotion in accordance with clause (i) above,
(iii)
25 percent of the posts shall be filled in by direct recruitment
from amongst the eligible advocates on the basis of the
written and viva voce test to be conducted by the High
Court:
Provided that all the vacancies shall be fled up in the
particular year and unfilled post shall not be carried forward.
xxxxxxxxxxxxxxxxx"
8.1 It is also required to be noted that even as per the Recruitment
Notice - District Judge (65%), the promotion to the cadre of District
Judge (65%) from amongst the Senior Civil Judges shall be on the basis
of principle of merit-cum-seniority and passing a suitability test. The
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
428
SUPREME COURT REPORTS
[2023] 5 S.C.R.
suitability of a judicial officer for promotion is also provided in the
Recruitment Notice, which consists of four components reproduced
hereinabove. Thus, as per the statutory Rules and even as per the
Recruitment Notice, the promotion to the cadre of District Judge (65%)
shall be on the basis of principle of merit-cum-seniority and passing a
suitability test. At this stage, it is required to be noted that the Rules,
2005 further amended in the year 2011, have been framed by the High
Court pursuant to the directions issued by this Court in the case of All
India Judges' Association and Ors. (supra). It is required to be noted
that prior to the decision of this Court in the case of All India Judges'
Association and Ors. (supra), the promotion in the cadre of Higher
Judicial Service, i.e., District Judges and Additional District Judges were
given on the basis of principle of seniority-cum-merit. Emphasising the
need for merit-based criteria for promotion in the cadre of Higher Judicial
Service, i.e., District Judges and Additional District Judges, this Court
observed in paragraph 27 as under:-
"27. Another question which falls for consideration is the method
of recruitment to the posts in the cadre of Higher Judicial Service
i.e. District Judges and Additional District Judges. At the present
moment, there are two sources for recruitment to the Higher
Judicial Service, namely, by promotion from amongst the members
of the Subordinate Judicial Service and by direct recruitment. The
subordinate judiciary is the foundation of the edifice of the judicial
system. It is, therefore, imperative, like any other foundation, that
it should become as strong as possible. The weight on the judicial
system essentially rests on the subordinate judiciary. While we
have accepted the recommendation of the Shetty Commission
which will result in the increase in the pay scales of the subordinate
judiciary, it is at the same time necessary that the judicial officers,
hard-working as they are, become more efficient. It is imperative
that they keep abreast of knowledge of law and the latest
pronouncements, and it is for this reason that the Shetty
Commission has recommended the establishment of a Judicial
Academy, which is very necessary. At the same time, we are of
the opinion that there has to be certain minimum standard,
objectively adjudged, for officers who are to enter the Higher
Judicial Service as Additional District Judges and District Judges.
While we agree with the Shetty Commission that the recruitment
A
B
C
D
E
F
G
H
429
to the Higher Judicial Service i.e. the District Judge cadre from
amongst the advocates should be 25 per cent and the process of
recruitment is to be by a competitive examination, both written
and viva voce, we are of the opinion that there should be an
objective method of testing the suitability of the subordinate judicial
officers for promotion to the Higher Judicial Service. Furthermore,
there should also be an incentive amongst the relatively junior and
other officers to improve and to compete with each other so as to
excel and get quicker promotion. In this way, we expect that the
calibre of the members of the Higher Judicial Service will further
improve. In order to achieve this, while the ratio of 75 per cent
appointment by promotion and 25 per cent by direct recruitment
to the Higher Judicial Service is maintained, we are, however, of
the opinion that there should be two methods as far as appointment
by promotion is concerned: 50 per cent of the total posts in the
Higher Judicial Service must be filled by promotion on the basis
of principle of merit-cum-seniority. For this purpose, the High
Courts should devise and evolve a test in order to ascertain and
examine the legal knowledge of those candidates and to assess
their continued efficiency with adequate knowledge of case-law.
The remaining 25 per cent of the posts in the service shall be
filled by promotion strictly on the basis of merit through the limited
departmental competitive examination for which the qualifying
service as a Civil Judge (Senior Division) should be not less than
five years. The High Courts will have to frame a rule in this
regard."
8.2 Thereafter, this Court directed that the recruitment to the Higher
Judicial Service, i.e., the cadre of District Judges will be 50 percent by
way of promotion (which has been subsequently increased to 65 percent)
from amongst the Civil Judges (Senior Division) on the basis of principle
of merit-cum-seniority and passing a suitability test. Thus, this Court has
categorically emphasised the merit-cum-seniority and passing a suitability
test for promotion in the cadre of Higher Judicial Service. That this
Court directed all the High Courts / States to amend the Rules /
Regulations accordingly. Therefore, the High Court framed the Gujarat
State Judicial Service Rules, 2005, in line with the directions issued by
this Court in the case of All India Judges' Association and Ors.
(supra).
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
430
SUPREME COURT REPORTS
[2023] 5 S.C.R.
8.3 In the present case and as per the case on behalf of the High
Court, so stated in the counter, the High Court has considered the merit
only for the purpose of achieving the benchmark and thereafter has
switched to the seniority-cum-merit and has given the promotion on the
basis of seniority only amongst those, who have achieved the benchmark
of 50 percent. Thus, after conducting the written test, which is one of
the components to assess the suitability, the High Court has considered
the merits only for the purpose of achieving benchmark and thereafter
has switched to the principle of seniority-cum-merit and thereby has
given a go-by to the principle of merit-cum-seniority. The method adopted
by the High Court is just contrary to the observations made by this Court
in paragraph 27 in the case of All India Judges' Association and
Ors. (supra) and also contrary to the Gujarat State Judicial Service
Rules, 2005 and the Recruitment Notice.
8.4 We do not find anything in the Recruitment Rules, 2005 and/
or even the Recruitment Notice to consider the merit only for the purpose
of achieving benchmark of 50 percent. The correct method would be to
prepare the merit list on the basis of the four components as mentioned
in paragraph 2 of the Recruitment Notice, from amongst those Senior
Civil Judges (including ad-hoc Additional District Judges) having not less
than two years of qualifying service in that cadre and thereafter to prepare
the merit list on the basis of the aggregate marks obtained under different
components and thereby to give the promotion solely on the basis of
merit, then and then only, it can be said to be following the principle of
merit-cum-seniority. Therefore, in the present case, while giving the
promotion in the cadre of District Judge, the High Court has given a goby to the principle of merit-cum-seniority, which this Court has emphasised
in the case of All India Judges' Association and Ors. (supra).
Therefore, the High Court has adopted the wrong method.
8.5 Now, insofar as the submission on behalf of the contesting
respondents - promotees and the High Court that this procedure is being
followed since 2011 and even the same is being followed in other High
Courts and therefore, this Court may not interfere with such a method is
concerned, the aforesaid cannot be accepted. Merely because, a wrong
method is being adopted cannot be a ground to perpetuate the same, if it
is found to be illegal and/or contrary to the directions issued by this
Court, more particularly, in the case of All India Judges' Association
and Ors. (supra).
A
B
C
D
E
F
G
H
431
8.6 Even the objection on behalf of the promotees that as this
Court is monitoring the process of recruitment to the post of District
Judges and, therefore, the present writ petition may not be entertained
and/or by this Bench, has no substance. What is being monitored is the
process and not the methodology adopted for promotion to the post of
District Judge. This Court is monitoring whether the time schedule fixed
by this Court in the case of Malik Mazhar Sultan (supra) is being
followed or not and the posts are timely filled in or not. The mode and
method of the promotion is not the subject matter.
8.7 Now, insofar as the reliance placed upon the decision of this
Court in the case of C.P. Kalra (supra) relied upon on behalf of the
promotees is concerned, at the outset, it is required to be noted that the
said decision is prior to the decision of this Court in the case of All India
Judges' Association and Ors. (supra). In the present case, the
Recruitment Rules specifically provides that the promotion shall be given
by applying the principle of merit-cum-seniority, which is to be adhered
to.
8.8 Now, insofar as the reliance placed upon the decision of this
Court in the case of V.K. Srivastava and Ors. (supra) relied upon on
behalf of the promotees is concerned, at the outset, it is required to be
noted that in the said decision, of this Court is not observing that the
principle of merit-cum-seniority is to be given a go-by. Before this Court,
it was submitted on behalf of the petitioners that prior to the amendment
of the Rules, promotion to the cadre of District Judge was based on the
principle of "seniority-cum-merit" and now, as per the amended Rules,
pursuant to the directions issued by this Court, the principle has been
changed to "merit-cum-seniority" and the same has seriously affected
the rights of the Civil Judges (Senior Division). However, the amended
Rules are applicable retrospectively and to that, this Court noted the
contention on behalf of the State that in the process of promotion, merit
alone was not being given importance. There was no direct controversy
before this Court on the principle of "merit-cum-seniority" and/or what
can be said to be the "merit-cum-seniority". The law on the principle of
"merit-cum-seniority is by now, settled by this Court in a catena of
decisions. As observed, while applying the principle of "merit-cumseniority", greater emphasis is given on merit and ability and seniority
plays a less significant role. As observed, while applying the principle of
"merit-cum-seniority", the seniority is to be given weight only when merit
RAVIKUMAR DHANSUKHLAL MAHETA & ANR. v. HIGH
COURT OF GUJARAT AND ORS. [M. R. SHAH, J.]
A
B
C
D
E
F
G
H
432
SUPREME COURT REPORTS
[2023] 5 S.C.R.
and ability are approximately equal (See B.V. Sivaiah and Ors. (supra);
Rajendra Kumar Srivastava and Ors. Vs. Samyut Kshetriya
Gramin Bank and Ors., (2010) 1 SCC 335).
8.9 It is required to be noted that in the present case and as per
the merit list produced before the High Court, the candidates, who have
secured much more marks are denied promotion and the candidates /
Civil Judge (Senior Division), who are having less marks / leas meritorious
are promoted. In the present case, the petitioner No. 1 secured 135.50
out of 200 marks and the petitioner No. 2 secured 148.50 marks out of
200 against which a candidate having secured 101 marks have got the
promotion, which is affecting the principle of "merit-cum-seniority".
9. Thus, we are more than satisfied that the impugned Select List
dated 10.03.2023 issued by the High Court and the subsequent Notification
dated 18.04.2023 issued by the State Government granting promotion to
the cadre of District Judge are illegal and contrary to the relevant Rules
and Regulations and even to the decision of this Court in the case of All
India Judges' Association and Ors. (supra). Therefore, we are more
than prima facie satisfied that the same as such are not sustainable.
Though, we were inclined to dispose of the writ petition finally, however,
as Shri Dushyant Dave, learned Senior Advocate appearing on behalf of
some of the respondents - promotees has prayed not to dispose of the
writ petition finally and, therefore, may consider the question of interim
relief, we are not disposing of the writ petition finally. Taking into
consideration the fact that the State Government has issued the impugned
Notification dated 18.04.2023 during the pendency of the present writ
petition and after the receipt of the notice issued by this Court in the
present proceedings and, thus, despite in knowledge of the present
proceedings, however, subject to the ultimate outcome of the present
writ petition and as observed hereinabove, the State Government could
have waited till the next date of hearing by this Court, which was on
28.04.2023 and at present the respective promotees have not assumed
their posting on the promotional post and as such are sent for training,
we stay the further implementation and operation of the Select List dated
10.03.2023 issued by the High Court of Gujarat and the subsequent
Notification dated 18.04.2023 issued by the State Government. Meaning
thereby, the respective promotees be sent to their original posts which
they were holding prior to their promotion vide Select List dated
10.03.2023 and Notification dated 18.04.2023. However, it is clarified
A
B
C
D
E
F
G
H
433
that the present stay order shall be confined with respect to those
promotees whose names do not figure within the first 68 candidates in
the Merit List on the basis of the merits, the copy of which is produced
by the High Court along with the counter. Meaning thereby, the promotion
of those promotees, whose names otherwise do figure in the first 68
candidates in the Merit List shall be continued as even otherwise and
even if the writ petition is allowed, in that case also, they will get the
promotion on merits.
10. Looking to the importance of the matter and the observations
made by this Court in the case of All India Judges' Association and
Ors.